Today Among People Who Wear Robes

The big new out of the Supreme Court today will be that, by a resounding 7-1 margin, the Court dropped a long, booming spiralinto the coffin corner, pinning the Longhorns back inside their own five-yard line on the issue of affirmative action. (Note to political scribes: That's the way you do a "punting" metaphor. Just sayin'.) The littler, and more important, news out of the Supreme Court today is that this most corporate-friendly of courts issued two more decisions that will make it suck a little more to be an employee. The latter two were read from the bench by Justice Samuel Alito, who is rapidly replacing Antonin (Short Time) Scalia as the blog's favorite reactionary gombeen with absolutely no clue as to how things happen in the real world.

The Texas case is clearly a matter of the Court's having decided not to decide. That it was read by Justice Anthony (Weathervane) Kennedy should have been a tip-off that something inconclusive this way comes. (The idea that the Court may similarly find a reason to kick away the rest of the major decisions it has pending is a pleasant one, but not at all bloody likely.) But the supporters of affirmative action have more to fear from the court's move than do its opponents. The Court essentially overruled a lower court's decision to let the admission procedures of the University Of Texas stand, and sent the case back down with instructions to the lower court not to defer quite so much to the university on the issue, which is a clear signal that the Supreme Court is watching what comes next. My guess is that the lower court will find some reason to leave the standards in place and we'll all be back here pretty soon.

But the other two decisions -- Vance v. Ball State University and University of Texas Southwestern Medical Center v. Nassar -- are as bad, and as thoroughly detached from empirical reality, as they possibly could be, especially the former. The case involved a kitchen worker at Ball State who accused a supervisor of harassing her because she was the only black person working on the staff. Spectacularly, the case turned, essentially, on who qualified as a "supervisor." (Under Title VII of the Civil Rights Act of 1964, it's far easier for a plaintiff to win a harassment case against a supervisor than against fellow employees, even if the latter have been vested by upper echelons with supervisory functions.) As Ian Millhiser explained the facts;

According to the United States Court of Appeals for the Seventh Circuit, a "supervisor" is someone whose authority "primarily consists of the power to hire, fire, demote, promote, transfer, or discipline an employee." Employees who can assign tasks to other workers, or even those who direct their day to day activity, don't count. It's not difficult to imagine what could happen if the Supreme Court upholds this rule. At oral argument, Justice Elena Kagan raised the hypothetical of a secretary who works for a professor, and the professor "subjects that secretary to living hell, complete hostile work environment on the basis of sex." Under the Seventh Circuit's rule, this professor nonetheless does not qualify as a "supervisor" if the secretary can only be fired by a bureaucrat with the job title "Head of Secretarial Services," even if the professor directs every minute of the secretary's day. The plaintiff in Vance alleges a similar situation. She worked in a university kitchen, and claims that a racist supervisor assigned her to menial tasks such as chopping vegetables, rather than more desirable tasks such as preparing meals or baking items from scratch, because that supervisor wanted to lash out against her for being black.

In other words, your supervisor can't harass you, but your supervisor can subcontract the job to whoever wants it. However, Sam Alito, who never will have a supervisor again in his life, has no problem seeing past the problems of those of us who will.

We hold that an employer may be vicariously liable foran employee's unlawful harassment only when the employer has empowered that employee to take tangibleemployment actions against the victim, i.e., to effect a "significant change in employment status, such as hiring,firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits."

In the world of people without supervisors, it is completely permissable for your employer to subcontract the job of harassing you to someone else and, as long as they don't fire you, they can make your work like a living hell.

The approach recommended by the EEOC Guidance, by contrast, would make the determination of supervisor status depend on a highly case specific evaluation of numerous factors.

Which is precisely the way the world works in 99 percent of the jobs in this country these days.

In such cases, the victims will be able to prevail simply by showing that the employer was negligent in permitting this harassment to occur, and the jury should be instructed that the nature and degree of authority wielded by the harasser is an important factor to be considered in determining whether the employer was negligent. The nature and degree of authority possessed by harassing employees varies greatly, see post, 9-11 (offering examples), and as we explained above, the test proposed by petitioner and the United States is ill equipped to deal with the variety of situations that will inevitably arise. This variety presents no problem for the negligence standard, which is thought to provide adequate protection for tort plaintiffs in many other situations. There is no reason why this standard, if accompanied by proper instructions, cannot provide the same service in the context at issue here.

I think we can all agree that this is a very interesting concept of the word "simply," which does not carry the same meaning in the world without supervisors as it does in the world the rest of us inhabit. Justice Ruth Bader Ginsburg dissented, and seems to be familiar, at least, with the fact that we don't all work as justices of the United States Supreme Court.

The Court today strikes from the supervisory category employees who control the day-to-day schedules and assignments of others, confining the category to those formally empowered to take tangible employment actions. The limitation the Court decrees diminishes the force of Faragher and Ellerth, ignores the conditions under whichmembers of the work force labor, and disserves the objective of Title VII to prevent discrimination from infecting the Nation's workplaces.

What, them worry?

Charles P. PierceCharles P Pierce is the author of four books, mostly recently Idiot America, and has been a working journalist since 1976.

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